Partly allowed

Smt.Jamuna v. Smt.Yashodamma

Karnataka HC16 Dec 2024RFA/1699/2015

Case brief

AI extract

What is this about?

Plaintiffs' first appeal against dismissal of their suit for declaration and injunction over agricultural land purchased from defendants 1 to 4, who had earlier executed a GPA through which sites were sold to defendants 5 to 18. The High Court admitted additional documents including a conversion order for 4 acres 33 guntas, set aside the trial court judgment, declared the plaintiffs owners of 4 ac

What did the court decide?

Appeal allowed in part; trial court judgment set aside; plaintiffs declared owners of 4 acres 33 guntas in Sy.No.110; perpetual injunction granted against respondents 5 to 13 in respect of that extent

Smt.Jamuna Vs Smt.Yashodamma — Specific Performance | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF DECEMBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.1699 OF 2015

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BETWEEN:

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1 . SMT. JAMUNA W/O SRI. S.N. MOHAN KUMAR, AGED ABOUT 50 YEARS, R/AT NO.172/5-1, DOLLARS COLONEY, BILEKAHALLI, 4TH CROSS, 2ND STAGE, BTM LAYOUT, BANNERGHATTA ROAD, BENGALURU - 560 076.

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2 . SRI. S.N. MOHAN KUMAR @ G. N. R. MOHANA, S/O LATE G. NARAYANA SWAMY, AGED ABOUT 53 YEARS, R/AT NO.172/5-1, DOLLARS COLONEY, BILEKAHALLI, 4TH CROSS, 2ND STAGE, BTM LAYOUT, BANNERGHATTA ROAD, BENGALURU - 560 076.

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3 . SRI. S.N. SHEKAR S/O LATE G. NARAYANA SWAMY , AGED ABOUT 50 YEARS, R/O NO.208/1, 11TH CROSS, WILSON GARDEN, BENGALURU - 560 027.

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4 . SRI. S.N. BABU

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S/O LATE G. NARAYANA SWAMY , AGED ABOUT 46 YEARS, R/O NO.858, 6TH MAIN, KSRTC LAYOUT, JP NAGAR, BENGALURU - 560 079.

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5 . SRI. H.M. SURESH (SINCE DECEASED BY HIS LRS

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5(a) SMT. SHAILAJA AGED ABOUT 50 YEARS, W/O LATE H. M. SURESH

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5(b) SRI. CHIRANTHAN H S AGED ABOUT 25 YEARS, S/O LATE. H. M. SURESH

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5(c) SRI. KARTHIK S. AGED ABUT 20 YEARS S/O LATE H. M. SURESH

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ALL ARE R/AT R/O "SRINIVASA NILAYA" HULIMAVU VILLAGE, BANNERGHATTA ROAD, BANGALORE - 560 076.

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..APPELLANTS

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(BY SRI. K. K. VASANTH, ADVOCATE)

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AND:

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SMT. YASHODAMMA W/O LATE CHINNAPPA, SINCE DECEASED BY HER LR

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1 . SRI. MUNIRAJU, S/O LATE SRI CHINNAPPA AND

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SMT. YASHODAMMA AGED ABOUT 54 YEARS, R/AT HONGASANDRA VILLAGE, GARBEBHAVI PALYA, BEGUR HOBLI - 560 068. BENGALURU SOUTH TALUK.

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2 . SRI. NARAYANAPPA SINCE DECEASED BY HIS LRS

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2(a) SMT. RAJAMMA W/O LATE NARAYANAPPA AGED ABOUT 55 YEARS,

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2(b) SRI. MOHANA S/O NARAYANAPPA AGED ABOUT 30 YEARS,

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2(c) SMT. NEELAMMA D/O LATE NARAYANAPPA, AGED ABOUT 27 YEARS,

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RESPONDENTS 2(a) TO 2(c) ARE R/AT NO.46, OLD KISHORE MEDICAL, GAREBHAVI PALYA, BOMMENAHALLI POST, BENGALURU - 560 068.

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3 . SMT. KAMALAMMA W/O LATE KRISHNAPPA, AGED ABOUT 66 YEARS, R/AT HONGASANDRA VILLAGE, GARBEBHAVI PALYA, BEGUR HOBLI - 560 068. BENGALURU SOUTH TALUK.

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4 . SRI. RAMAPPA S/O LATE MUNIVENKATAPPA, AGED ABOUT 66 YEARS, R/AT HONGASANDRA VILLAGE, GARBEBHAVI PALYA,

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BEGUR HOBLI - 560 068. BENGALURU SOUTH TALUK.

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5 . SRI. B.S. SUBBARAJU S/O SHYAMARAJU SINCE DECEASED BY HIS LR'S

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(ORDER DATED 28.03.2024 DISMISSING THE APPEAL HAS ABATED AGAINST THE RESPONDENT NO.5 IS RECALLED BY ORDER DATED 02.07.2024, RESTORING THE NAME OF THE RESPONDENT NO.5)

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5(a) SMT. NAGARATHNA W/O LATE B.S.SUBBARAJU, AGED ABOUT 68 YEARS, R/AT NO.21, 3^RD MAIN, 3^RD CROSS, BSK 2^ND STAGE, BENGALURU - 560 070.

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(AS PER ORDER DATED 21.10.2024)

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6 . SRI. NARAYANA RAJU S/O SHYAMARAJU, AGED ABOUT 64 YEARS, R/AT NO.1101, 17TH CROSS, 24 MAIN, BSK II STAGE, BENGALURU - 560 070.

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(ORDER DATED 12.03.2024 TO DELETE HIS RANK IS RECALLED BY ORDER DATED 02.07.2024 TO RETAIN HIS NAME TO HIS ORIGINAL RANKING AND HENCE HIS RANK IS RESTORED AS RESPONDENT NO.6)

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7 . SRI. P.C. SUDARSHAN S/O LATE CHIKKA MUNISWAMAPPA, AGED ABOUT 65 YEARS, R/AT NO.1/9, MILLIA BUILDING, N R ROAD, BENGALURU - 560 002.

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(ORDER DATED 12.03.2024 TO DELETE HIS RANK IS RECALLED BY ORDER DATED 02.07.2024 TO RETAIN HIS

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NAME TO HIS ORIGINAL RANKING AND HENCE HIS RANK IS RESTORED AS RESPONDENT NO.7)

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8 . SRI. C. BHASKAR REDDY S/O RAMACHANDRA REDDY, AGED ABOUT 60 YEARS, R/AT NO.679, 12TH CROSS, JAYANAGAR 7TH BLOCK, BENGALURU - 560 082.

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9 . SMT. LAKSHMI DEVI W/O SRI. P. JAGANNATHA REDDY, AGED ABOUT 47 YEARS, R/AT NO.2821/E, 5TH MAIN, BSK 2ND STAGE, BENGALURU - 560 070.

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10 . SMT. K.N. LATHA KUMARI W/O SRI NAGARAJU, AGED ABOUT 40 YEARS, R/AT NO.2815, 6TH MAIN, BSK 2ND STAGE, BENGALURU - 560 070.

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11 . SRI. VIJAYA KUMAR S/O SRI HANUMANTH RAO, AGED ABOUT 45 YEARS, R/O NO.285/1, II CROSS, CHENGAIAH LAYOUT, III BLOCK, TR NAGAR, BENGALURU - 560 070.

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12 . SRI. P. JAGANNATHA REDDY S/O SRI. MUNIRATHNA REDDY, AGED ABOUT 40 YEARS, R/AT NO.2821/C, 5TH MAIN, BSK II STAGE, BENGALURU - 560 070.

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13 . SRI. V. JAYACHANDRA REDDY S/O SRI. C. VARADA REDDY,

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AGED ABOUT 62 YEARS, R/AT NO.3, NAGAVARA ROAD, OPP. KG HALLI PS, KADUGONDANAHALLI, BENGALURU - 560 046.

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14 . SRI. C.N. BABU REDDY S/O SRI. C. KESHAVA REDDY, AGED ABOUT 60 YEARS, R/AT NO.86, ERAPPA REDDY LAYOUT, BANASAWADI MAIN ROAD, BENGALURU - 560 033.

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15 . SRI. K.S. SURESH BABU S/O SUNDER RAJU, AGED ABOUT 45 YEARS, R/AT NO.9, 34 MAIN, TATA SILK FARM, BASAVANAGUDI, BENGALURU - 560 004.

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16 . SMT. S. RADHA W/O CHANDRASHEKAR RAJU, AGED ABOUT 45 YEARS, R/AT NO.170/A, PADMANABHANAGAR, R.K. LAYOUT, 2ND MAIN, BENGALURU - 60 070.

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17 . SMT. S. PUSHPA W/O SRI. GOVINDA RAJU, SINCE DECEASED BY HER LR'S

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17(a) SMT. NANDINI D/O LATE PUSHPA GOVINDARAJ, AGED ABOUT 45 YEARS R/AT LAKSHMIVENKATESHWARA NILAYA, WHITE HOUSE, 24^TH MAIN ROAD, OPP. BRIGADE PALMSPRINGS, 7^TH PHASE, J P NAGAR,

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BENGALURU - 560 078.

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(AS PER ORDER DATED 21.10.2024)

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18 . SMT. SHASHIKALA SUDHAKAR W/O SRI R. SUDHAKAR RAO, AGED ABOUT 50 YEARS, R/AT NO.16, JAIN TEMPLE STREET, V.V.PURAM, BENGALURU - 560 004.

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…RESPONDENTS

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(BY R1 SERVED, BUT UNREPRESENTED;

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SRI. Y. N. ASHWATH REDDY, ADVOCATE FOR R2(a TO c) SRI. S. VASANTH MADHAV, ADVOCATE FOR R3 & R4; VIDE ORDER DATED: 2/7/2024, DELETION OF R6 & R7 IS RECALLED; SRI. ANANTH MANDGI, SENIOR COUNSEL FOR SRI. R.A.CHANDRASHEKAR REDDY, ADVOCATE FOR R6 TO R9, R11 TO R14 & R18; SRI. H.S.DWARKANATH, ADVOCATE FOR SRI. KIRAN THIRUMALESH J., ADVOCATE FOR R15; SRI. PRAMOD NAIR, SENIOR COUNSEL FOR SRI. VAMSHI KRISHNA, ADVOCATE FOR R10 TO R16; SRI. KOUSHIK M S., ADVOCATE FOR R5(a) & R17(a); VIDE ORDER DATED: 31/8/2024, NOTICE TO R17(a) IS HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.11.2015 PASSED IN O.S NO.2290/2005 ON THE FILE OF THE VIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-15), DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.11.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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RESERVED FOR ORDERS ON: 21.11.2024 PRONOUNCED ON : 16.12.2024

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CORAM: HON'BLE MR. JUSTICE K NATARAJAN

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CAV JUDGMENT

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This appeal is filed by the appellants/plaintiffs under Section 96 of CPC for setting aside the judgment and decree passed by the VIII Additional City Civil & Sessions Judge, Bengaluru in O.S.No.2290/2005 dated 09.11.2015 for having dismissed the suit.

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Heard the arguments of learned counsel for the appellants and learned senior counsel Sri.R.A.Chandrashekar Readdy for respondent Nos.6 to 9, 11 to 14 and 18. Also, Sri.Pramod Nair learned senior counsel for respondent Nos.10 and 16 and other learned counsel for the respondents.

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The appellants are plaintiffs and respondents are defendants before the trial court. The ranks of the parties are retained for the sake of convenience.

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The case of the plaintiffs is that the plaintiffs have filed suit against the defendants for relief of declaration to declare that the plaintiffs are absolute owners in possession of the schedule property and to declare the sale deed executed by Sri.Srinivasa Reddy and Sri.Raghavendra swamy in favour of the defendant Nos.5 to 8 are not binding and further for relief of perpetual injunction, restraining the defendant Nos.5 to 18 from interfering with the possession and enjoyment of the suit schedule property.

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It is contended that the land measuring 5 acres and 23 guntas of Hongasandra Village Begur Hobli, Bangalore South Taluk, (hereinafter referred to as 'Suit schedule property') and the plaintiffs had purchased the said schedule property under the sale deed dated 8.11.2004 for Rs.40,09,000/- with a sole intention to carry out agriculture operations and also develop and improve the field of agriculture.

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It is further submitted that the defendant Nos.1 to 4 are predecessor in title of the schedule property, as erstwhile owners in respect of the property. They conveyed the property in favour of the plaintiffs, with definite assurance that the land is free from all encumbrances and no sale deeds in any manner whatsoever has been executed. Upon such transfer, right, title, and interest by

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virtue of sale deed dated 08.11.2004, the plaintiffs have been put in actual physical possession of the entire extent of the schedule land, wherein they are in possession even to this day and that they are the owners thereof. The record of rights and mutation are in the names of the plaintiffs. It is further contended that the defendant Nos.5 to 18 purported to have filed suit in O.S.No.8896/2004 for seeking injunction as against defendant Nos.1 to 4 and 10 in respect of schedule property. As the suit came to be filed by the defendant Nos.5 to 18 with regard to the purchase of sites by them in the 'A' Schedule Property. The Plaintiffs came to know that on 28.4.2003, an alleged GPA was executed by defendant Nos.1 to 4 pertaining to land to various other persons, numbering 37, representing the defendant. Nos.1 to 4. Having various persons representing the alleged GPA/Power of Attorney, empowers doing various, deeds and things pertaining to the property. On perusal of the GPA, plaintiffs came to know that sale in respect of property by power of attorney holder, were to develop the entire extent of scheduled land. The development of the land being a conditional act. The conditions were imposed in respect of the development of

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the land. In the event of development required to be done, conversion from the agriculture to non-agriculture purpose to be obtained from Deputy Commissioner, was a condition implemented

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as provided under Section 95 of Karnataka Land Reforms Act. It is

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also necessary that even that layout is formed, such layout is required to be developed after obtaining the necessary permission. It is further submitted that a civil suit in O.S.No.1098/1990 was

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also filed by certain party, Beeradevara Temple Association. The suit also required to be adjudicated. The said suit was coming in the way of development of the property under the conditions referred above, as provided under the GPA executed in favour of one Sri.Srinivasa Reddy and Sri.Raghavednra Swamy were required to be co-extensive that of the other conditions, one condition could not exclude, the other conditions imposed under the GPA. Therefore, exercising of one of the conditions was not permitted under GPA. Thereby, all conditions were violated by the said two GPA holders.

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It is further contended that the defendant Nos.1 to 4 having come to know of such violations in terms of power of attorney executed, the violations which are perpetrated to have been taken note of, is that the GPA have not obtained conversion order, which is necessarily required under provision of Karnataka Land Revenue Act. It is submitted that the disposal of the suit in O.S.No.1098/1990 obtained all various sanction plans for conversion from agriculture to non agriculture and the entire amount of the land was falling without being developed. Therefore,

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defendant Nos.1 to 4 have issued notice cancelling the GPA dated 24.01.2004, which was registered before the Sub-Registrar. The power of attorney is not coupled with interest for consideration, having regard to the fact that Attorney is not coupled with interest for consideration. It was incumbent for defendant Nos.1 to 4 to cancel the GPA, in favour of Sri.Srinivasa Reddy and Sri.Raghavednra Swamy. It is submitted that the GPA holders could not have executed sale deeds in favour of defendant Nos.5 to 18. If any sale deeds have been executed, the sale deeds are not binding

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on the plaintiff. On perusal of the 12 sale deeds, the defendant Nos.5 to 18 have purchased the sites and the sale deeds are not pertaining to the property described in schedule, neither they establish that it is pertaining to particular survey number, as described in the schedule. The power of attorney have executed the sale deed in favour of defendant Nos.5 to 18 who have sold it for monetary gain. They have not sold it by identifying each and exclusive property in their favour. Such identification becomes impossible and in absence of conversion order for residential purpose. The defendant Nos.5 to 18 have purchased under 12 sale deed, which do not show where the property is exactly located and they are just nominal sale deeds. They do not confer any right, title or interest.

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It is further alleged that the 12 sale deeds do not support

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any documents such as Khatha, Tax Paid details or identification. Therefore, possession of the schedule property with the defendant Nos.1 to 4 have delivered the possession of the plaintiff under the sale deed on 08.11.2004. The defendant by their representative filed the suit in O.S.No.6771/2004 against GPA holders for permanent injunction. They have stated that in O.S.No.8896/2004 filed against defendant Nos.1 to 4 and the suit for declaration and perpetual injunction, in respect of 12 sale deeds, under which they have purchased the property. Thereafter, they have withdrawn the relief of declaration and confined prayer only for perpetual injunction. The matter was adjudicated before the court on IA No.1 in respect of interfering with the peaceful possession and enjoyment of the schedule and the court has granted injunction against defendant No.5. The same was modified in MFA No.1123/2005 and confirmed the order by the High Court. But it does not confer any right in respect of either of the parties. The plaintiff possession and the strength of the sale deed executed by defendant Nos.1 to 4, Khatha stood undisturbed as agricultural land under the RTC extracts, mutation standing in the name of plaintiff. The possession, title got continued undisturbed and unaltered without there being any document establishing possession in respect of

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schedule property, by the defendant Nos.1 to 18. It is further contended that the defendants are attempting to interfere, take forceful possession and cause interference in respect of property, on the strength of the tentative order obtained by them in O.S.No.8896/2004. The schedule property is an agricultural land. The nature and the character of the entire extent of land in Sy.No.110 measuring 5 acres and 23 guntas situated at Hongasandra village, Begur Hobli, Bengaluru South Taluk is an agriculture land. It is submitted that defendant Nos.5 to 18 are not agriculturists. They have no right to make an application before special Tahsildar. The order of the Special Tahsildar was assailed before the Asst. Commissioner. The Asst. Commissioner passed an order that the right, title, interest, ownership, possession of the property is with the plaintiffs. The order of Asst. Commissioner was challenged before the Deputy Commissioner. The Deputy Commissioner remanded the matter back for fresh consideration. The plaintiffs are owner in possession of scheduled property. Therefore, prayed for decreeing the suit.

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In pursuance of the summons, the defendant Nos.1 to 4 appeared and filed written statement by admitting that they are the co-owners of the schedule property. They are exercising the right, title, and interest over the property. It was not possible for them to

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manage the property. Hence, they have given GPA in favour of Sri.Srinivas Reddy and Sri.Raghavendra Swamy on 28.4.1993 to represent and act on their behalf. The above said attorneys have acted in prejudicial manner, under the above said circumstances and they thought it is fit to cancel the GPA. Accordingly, it was cancelled on 24.1.2004 and they have communicated the cancellation of GPA vide legal notice dated 31.01.2004. The defendants have sold the property in favour of the plaintiffs on 08.11.2004 for valuable sale consideration. They also contended that some strangers are trying to interfere with the possession and enjoyment of the schedule property, they were constrained to file the suit in O.S.No.6771/2004 for injunction. The alleged sale deeds relied by the defendant Nos.5 to 8 are totally different compared with the property number described in the schedule of the sale deeds. It is submitted that the sites sold under the sale deeds are not carved out of the suit schedule property. Hence, prayed for dismissing the suit.

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Defendant Nos.6, 7 and 8 have filed separate written statements. Defendant Nos.5, 9 to 16 and 18 have also filed the written statement. Defendant No.17 also filed separate written statement. The sum and substance of the written statement of the defendants are that the suit filed by the plaintiffs against the

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defendants for relief of declaration and injunction is not

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maintainable. The defendants have denied the fact that the plaintiffs have purchased the schedule property. All the defendants have also denied since from the date of purchase, the plaintiffs are in possession and enjoyment of the schedule property.

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It is further contended that the defendant Nos.5 to 18 have taken specific contention that suit has been filed as a counter blast to the various suits filed by defendant Nos.5 to 18 for perpetual injunction. The Defendants have taken contention that property is an agricultural land as stated by the plaintiffs. The property is ceased to be agricultural land long back, in view of the formation of the sites, by the landlord Smt.Yashodamma through GPA holders Sri.Srinivas Reddy and Sri.Raghavendra Swamy.

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The defendant Nos.1 to 4 are the legal representatives of the Munivenkatappa @ Chikkabidappa. They have already sold the property in the year 1993 though GPA by authorising the GPA holders to sell the property after receiving sale consideration. The entire extent of 6 acres 38 guntas as beneficial owners with marketable title, have transferred and conveyed the property long back with 14 guntas kharab, measuring 7 acres and 12 guntas in favour of the GPA holders. The legal representatives of

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Munivenkatappa have sold the entire suit property to the GPA holders and have put them in possession in the year 1983. The defendant Nos.5 to 18 have admitted that they have filed suit for seeking perpetual injunction and they denied the legal representatives of Munivenkatappa have any right, interest over the schedule property, which was already sold in the year 1983. The defendants have admitted that in O.S.No.1098/1990 filed by certain party Beeradevaru Temple Association, the defendants have taken contention that the suit filed against earlier landlords i.e, Munivenkatappa are in the habit of selling property for more than one person. He has sold to one Beeradevaru Temple Association by executing sale deed for Rs.2,26,500/-. The Society filed suit in OS No.10398/1990 before the City Civil Court, Mayo hall, Bengaluru for specific performance of agreement of sale. During the pendency of this suit Munivenkatappa died and the legal representatives were brought on the records by the society. The legal representatives of Munivenkatappa@ Chikkabidappa put their admission through their counsel and sold the very same property to Sri.Srinivas Reddy and Sri.Raghavendra Swamy for ₹40,09,500/-. On 28.04.1993 executed agreement of sale, GPA, ID Bond without disclosing anything about the agreement of the sale entered into between Munivenkatappa in favour of Beeradevaru Temple Association and the suit is pending

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for adjudication. It is further submitted that after coming to know

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the pendency of the suit, GPA holders deliberately with representative of Beeradevaru Temple Association, succeeded to bring an amicable settlement between the parties. Accordingly, the matter was settled between them in OS No.10398/1990.

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It is further contended that the GPA executed in favour of Sri.Srinivas Reddy and Sri.Raghavendra Swamy coupled with an agreement of sale and also received full sale consideration. Thereafter, the GPA holder was put in possession, they formed layout, sold to various persons. Further submitted, in view of the above alleged consideration, GPA as null and void and it is against public policy. The legal representative of Munivenkatappa are in the habit of filing false and fictitious cases. More than half dozen suits are filed. Munivenkatappa have filed suit for partition in OS.No.370/2002, another suit in O.S.No.8327/2002 both suits are still pending. The defendant Nos.5 to 18 have taken contention that the GPA holders are legally entitled to execute the sale deed in their favour. Hence, the sale deed which are executed by GPA holders are not binding on the plaintiff.

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The defendant Nos.5 to 18 have taken specific contention that they are the absolute owners of the property, which they have

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purchased under various registered sale deeds. Later the legal representatives of Munivenkatappa have executed the deed on 18.4.1996 and they have delivered the possession of entire extent of land including Kharab in favour of GPA holders i.e., Srinivas Reddy and Raghavendra Swamy. Accordingly, on the basis of GPA and agreement of sale, the layout was formed and sold to various purchasers. The defendant Nos.1 to 4 filed two suits for relief of partition and separate possession. These defendants are also parties and sought for certain reliefs. The plaintiff colluding with defendant Nos.1 to 4 have filed a suit to deprive the right of the defendant Nos.5 to 18. Hence, prayed for dismissal of the suit.

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Based upon the pleadings, the trial court framed the issues and additional issues as under:

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Issues:

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1. Whether plaintiffs prove that they are in

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possession of suit schedule property?

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2. Whether plaintiffs prove alleged obstruction?

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3. Whether plaintiffs are entitled for any relief?

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4. What Order? What decree?

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Addl. Issues :

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1. Whether the plaintiffs prove their title over the suit schedule property?

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2. Whether the subject matter of the suit is not properly valued and the court fee paid is insufficient?

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3. Whether the suit is bad for non-joinder of necessary parties?

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4. Whether the suit is bad for mis-joinder of parties and cause of action?

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5. Whether the suit as filed by the plaintiffs is not maintainable under the law?

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In order to substantiate the case of the plaintiffs, the plaintiff No.5 examined as PW.1 and also examined PW.2 and PW.3 and 21 documents were marked. On the other hand, on behalf of the defendants, the defendant No.6 himself was examined as DW1 and also the defendant No.2 was examined as DW.2. They got marked 156 documents.

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After hearing the arguments, the trial court answered the issues and additional issues, as under;

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Issue No.1 : In the Negative.

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Issue No.2 : In the Negative

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Issue No.3 : In the Negative

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Issue No.4 : As per the final order,

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Addl. Issue No.1 : In the Negative

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Addl. Issue No.2 : In the Negative

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Addl. Issue No.3 : In the Negative Addl. Issue No.4 : In the Negative

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Addl. Issue No.5 : In the Negative

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Ultimately, the trial court dismissed the suit of the plaintiff. Being aggrieved with the same, the plaintiffs filed this suit before this court.

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The learned counsel for the appellant has contended that the trial court has committed an error by dismissing the suit of the plaintiffs. The plaintiffs was purchased the suit schedule property from the defendant Nos.1 to 4. They are the original owners of the property. The defendant Nos.5 to 18 had claimed the property through GPA holders, one Srinivasa Reddy and one Raghavendra Swamy but the sites mentioned in the schedule were not forming part of the suit schedule property. The alleged GPA executed by the defendant Nos.1 to 4 has been cancelled. The plaintiff suit is for declaration and injunction which cannot be dismissed. The property claimed by the plaintiff is 5 acre 23 guntas, where as the property claimed by the defendants are totally 1 acre 35 guntas. The total extent of the land in survey number was 6 acres 38 guntas with

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kharab, which is more than 7 acres. Even if the sites claimed by the

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defendant Nos.5 to 18, which is only 1 acre 35 guntas, which is situated on the other side of the road, but the plaintiffs property is on the southern side of the road i.e., the defendants property is situated on the northern side of the road and the plaintiff property is on the southern side of the road, which is nothing to do with the defendants claim. The trial court ought to have decreed the suit in part but entire suit cannot be dismissed. He also contended that the defendants claimed the property as site, where there is no conversion order, there is no layout plan for having formed the layout, the BDA has not approved the layout, identity of the defendants property is in dispute. The defendant has not produced any khatha, tax paid receipts other than the sale deeds.

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He further contended that the plaintiff examined as the

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PW.1 to 3 and got marked 21 documents. The defendant No.6 examined as DW.1 and he has given evidence on behalf of the defendant Nos.5 and 7 to 16 and 156 documents were marked. There is no authorization given to him for leading evidence on their behalf. Therefore, the evidence of DW.1 cannot be acceptable for

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the entire other defendants, it has to be restricted only to his case and the other defendants not entered into the witness box and they are tender for cross examination. Such being the case, an adverse

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inference shall be drawn against other defendants than defendant No.6. Learned counsel further contended that the documents produced by the defendant in respect of OS.No.8896/2004 will not helped the defendants. The documents produced by the plaintiff such as survey sketch, Akhar bands and village map are all clearly shows the property of the plaintiff is in possession. Therefore, it is contended that the judgment of trial court is not correct.

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The learned counsel for the appellants in support of his arguments relied upon the judgments of Hon'ble Apex Court as well as Hon'ble High Court of Karnataka, as under;

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(2003) 3 SCC 272

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Sardar Amarjit Singh Kalra (Dead) By Lrs., and Others Vs Pramod Gupta (Smt) (Dead) by Lrs., and others.

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(2021) 10 SCR 1187

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Akkamma and Others Vs Vemavathi and others

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AIR 2008 SC 2033

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Anathula Sudhakar Vs P.Buchi Reddy (dead) by Lrs., & Ors.,

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(1974) 1 SCC 242

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Nagindas Ramdas Vs Dalpatram Ichharam @ Brijram and Ors.,

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AIR 1971 SC 1542

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Chikkam Koteswara Rao Vs Chikkam Subbarao and Ors.,

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AIR 1981 Karnataka 40 (DB)

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Parameshwari Bai Vs Muthojirao Scindia

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AIR 2011 SC 2151

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Purshottam Vishandas Raheja & Anr Vs Shrichand Vishandas Raheja (deceased by Lrs.,) and Ors

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(1990) 3 SCC 588

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Haryana Land Reclamation and Development Corporation Ltd., Vs State of Haryana and Another

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AIR 1999 SC 1441

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Vidhyadhar Vs Mankikrao & Another

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Civil Appeal No.8830/2012

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Ramathal and Others Vs K.Rajamani (Dead) through Lrs and another

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RFA No.744/2016 C/w RFA No.743/2016

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Chinnappa Vs Smt.Sharadamma

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Per contra learned senior counsel appearing for the

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respondent No.8 has contended that plaintiffs have filed the suit for declaration that they are in possession, the bare declaration cannot

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be given without seeking possession, as the plaintiffs have not in possession of the schedule property. Therefore as per Section 34 of the Specific Relief Act, without seeking possession the declaratory relief cannot be granted. The respondents are defendant Nos.1 to 8 and in the year 1995 the layout was fully developed and sold the property by the GPA holders of defendant Nos.1 to 4. They have not challenged any transactions and after 20 years of the land sold to the defendant Nos.5 to 18, the GPA has been cancelled and the question of termination of GPA and cancellation of GPA does not arises, as the GPA holder already acted upon. The Ex.D.123 where decree has passed, defendant Nos.1 to 4 are the defendants and they have suffered the decree as they are not owners. A suit was filed by 6^th and 7^th defendant in OS.No.8603/2004, and they were not the parties in this present suit. Nearly 40 sites have been formed and fully developed and the defendant Nos.1 to 4 have colluded with the plaintiffs have filed this suit. The plaintiffs have claimed that they purchased the agricultural land but not the sites. The plaintiff also claimed that there was an agreement of sale but the said agreement of sale was not produced. Once the GPA is acted upon and after the same, if GPA is cancelled it is only in prospective effect but there is no retrospective act to say the act done by the GPA holders is not valid. The layout plan is produced, village

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panchayath granted the permission for layout and it is not agricultural land, there is no evidence and there is no pleadings.

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The learned Senior counsel also contended that the Srinivas Reddy and Raghavendra Swamy are the GPA holders, defendant Nos.1 to 4 were not made as party. Therefore, suit is bad for non joinder of necessary parties. If the prayer No.2 is not granted, the prayer No.1 can also not to be granted. As per Section 203 of Indian Contract Act, once GPA executed, coupled with interest, which cannot be cancelled. When the defendant Nos.1 to 4 already sold the property through the GPA holders to the other defendants, the question of again selling the property does not arises, as they are already sold the property.

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Learned senior counsel also contended that the suit is not maintainable without seeking possession. Therefore, appellants themselves admitted in the earlier proceedings that the defendant are in the possession of the sites, where roads were formed and constructed. Therefore, without seeking possession, the declaration cannot be granted. The GPA holder of the plaintiff also stated that he do not know where the property is exactly located. There are two borewells existed prior to the purchase. As per their suggestion, there is an apartment and sites were situated.

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Therefore, the suit cannot be entertained and trial court rightly dismissed the suit of the plaintiff. In support of his arguments, the respondent counsel relied upon judgment in the case of Maharchand Das Vs Lal Babu Siddique and Ors reported in MANU/Supreme Court/7079/2007.

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Another case reported in MANU/Supreme Court/0467/2019 in case of Gopalakrishna (D) lrs and Others V/s Narayan gowda (dead by lrs) and others and the judgment of the coordinate bench of this court in M.Krishnappa Vs

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KT.Srinivas & Ors reported in Manu/KA/3643/2014.

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25. Learned counsel for the other respondent also supported the arguments of learned senior counsel appearing for the respondent No.8 and contended that the owners of the land already executed the GPA in favour of 2 persons and the said 2 persons already sold the sites to various persons. Thereafter, the GPA has been cancelled. Therefore, the cancellation of GPA is not permissible. The rights were created under the GPA, by the GPA holders. In a case filed by the defendant in O.S.No.8896/2004 there is a decree against the plaintiff and others, that was not challenged during the pendency of the said suit, an injunction application came to be rejected and it was challenged before the

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High Court in the Miscellaneous first appeal, where it is stated that

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there is no lands available for the defendant Nos.1 to 4 for selling, which clearly reveals the possession was not delivered by the defendant. The property was already lost the character. It is also contended by the learned counsel that the suit is bad for non joinder of proper parties, hence prayed for dismissal of the suit.

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Learned counsel for respondent No.10 and 16 also taken similar contention that suit in OS.No.8896/2004 they have obtained a decree against the plaintiff and others and there is no appeal filed under the Ex.D81, the GPA power granted to them for alienating the property. Accordingly, the sites were formed. The respondent Nos.10 and 16 have purchased site Nos.29 and 56, the layout plan issued by the village panchayath, which clearly reveals sites were formed. The defendant Nos.1 examined as DW2 he has stated GPA has not been revoked, but the claim of the plaintiff is that the GPA has been revoked. Therefore, the contention of the defendant No.1 cannot be acceptable that the GPA has been cancelled. The defendant Nos.1 to 4 set up the plaintiff for filing the suit. The site No.18 was subject matter in OS.NO.8603/2004 and the same was decreed. Therefore, the GPA holders are necessary parties, therefore the suit is bad for non joinder of proper parties. There is no relief sought that GPA is void ab initio and suit is barred by

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limitation. There are other site owners, they are not made as party.

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Hence, prayed for dismissing the appeal.

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Having heard the arguments, perused the records, the

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point that arises for consideration are

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(i) Whether the plaintiff proves that they are absolute owner of the suit schedule property measuring 5 acres 23 guntas in hongasandra village?

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(ii) Whether the defendants are trying to interfere in the suit schedule property?

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(iii) Whether the suit is bad for no- joinder of proper parties?

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(iv) Whether the defendant Nos.5 to 18 proves they purchased the sites from the GPA holder of the plaintiff?

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(v) Whether the judgment of the trial court calls for interference?

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Having heard the arguments, perused the records, as

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regards in respect of point no.3 non-joinder of proper parties the defendant have taken contention that the GPA holders Sri.Srinivas Reddy and Sri.Raghavendra swamy are the necessary parties in the suit. Therefore suit is bad for non-joinder of proper parties. On the other hand, the plaintiffs have contended that the

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GPA executed in favour of the above said two person have been already cancelled by defendant Nos.1 to 4 and therefore they are not necessary parties. The trial court also framed the issues, in the additional issues Nos.3 and 4, that whether suit is bad for non joinder of necessary parties and bad for misjoinder of parties and cause of action. The trial court answered the additional issue Nos.4 and 5 in the negative as againt the defendant and in favour of the plaintiff. Though the suit was dismissed, but these 2 findings are against the defendants and they have not challenged the findings of the additional issue nos.4 and 5 against the defendants. Therefore, the same contention cannot be taken in the appeal filed by the plaintiff appellant. That apart, the case of the plaintiff is that the defendant Nos.1 to 4 are the owners of the property and they have sold the property to the plaintiff measuring 5 acre 23 guntas. It is

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also contended that the total measurement of the said Survey number of the land is 6 acres 38 guntas and also Kharab of 14 guntas, totally 7 acres 12 guntas of land and it is categorically contended by the appellant counsel that the property of the defendant Nos.5 to 18, the sites comes under only a portion of the Sy.No.110, which measures 1 acre 35 guntas and these lands were nothing to do with the plaintiffs portion of the property which were purchased by the plaintiff. Therefore, it is contended that the

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defendants property situated on the northern side of the road and the plaintiff schedule property situated on the southern side of the property. Such being the case, the GPA holders are not necessary parties in the suit. Admittedly, the findings were against the defendant, which was not challenged. Such being the case, once again the defendant cannot raise the said contention in the appeal without challenging the findings of the trial court against them.

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To prove the case of the plaintiff, the GPA holder of the plaintiff was examined as PW.1, he also got examined two witnesses and got marked various documents Ex.P1 to P22. Ex.P7 is sale deed of the plaintiff dated 8.11.2004. The defendant Nos.1 to 4 sold the property to the plaintiff for valuable consideration of Rs.40,09,000/ under registered sale deed. The schedule of the sale deed reveals, the property in Sy.No.110 measuring 5 acres and 23 guntas bounded East by Gramtana road, West by Kerekodi lake, North by same land Sy.No.110 and South by lake. On perusal of the said sale deed on 2 sites West by lake, East by road, and North by remaining Sy.No.110. The Ex.P3 Mutation register extract in respect of Sy.No.110, shows the property stands in the name of defendant Nos.1 to 4. Ex.P4 is RTC extract which also stands in the name of defendant Nos.1 to 4 as on the date of selling the property to the plaintiff. Ex.P5 the acknowledgement issued by the Revenue

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authority on the application filed by the plaintiff No.5, where it is stated due to the pendency of the suit in the civil court, the khatha cannot be transferred. Ex.P6 is another endorsement issued by the Tahsildar dated 09.11.2005 for receiving the application of the plaintiff. Ex.P2 is cancellation of the GPA dated 24.1.2004 by the defendant Nos.1 to 4 and their family. The GPA has been cancelled by family given in favour of Srinivas Reddy and Raghavendra Swamy in respect of the entire property measuring 6 acres and 26 guntas excluding the kharab. The Ex.P8 is the plaint in O.S.No.8896/2004, the written statement of the defendant No.5 is Ex.P10. Ex.p11 and 12 are the order of regular appeal. Ex.P13 is order passed by the Dy. Commissioner. Ex.P14 Order passed by the Asst. Commissioner. Ex.p15 is mutation. Ex.P16 and 17 are RTCs. Ex.P12 is the order passed by the Deputy Commissioner in the revision petition filed by the plaintiff where the Deputy Commissioner set aside the order passed by the Asst. Commissioner in RA No.339/2005-06 passed by the Asst. Commissioner and matter was remitted back. Ex.P13 is another order passed by the Tahzildar in respect of Sy.No.110 to enter the name of one Bhaskar reddy and others in the Revenue records, which was challenged under the appeal before the Assistant Commissioner in RA.339/2005 in ex.P14 where the Asst. Commissioner allowed the

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appeal filed by the one of the plaintiff herein and set aside the order of the tahzildar. Admittedly, the order of the Revenue authorities have been challenged in the High court. In the writ petition it was directed to the parties to approach the civil court for the remedies. Ex.P15 is mutation, register extract. These documents goes to show that the plaintiff purchased the property from defendant Nos.1 to 4 for valuable sale consideration, after cancelling the GPA in favour of the one Srinivas Reddy and Raghavendra Swamy.

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P.Ws.1 to 3 have given evidence in support of the case of the plaintiff. The main contention of learned counsel for defendant Nos.5 to 18 is that the defendant Nos.5 to 18 have filed a suit in O.S. No.8896/2004, where they have obtained decree and the said decree was not challenged by the plaintiff. They also taken the contention that there are other two suits have filed by some of the site purchasers. The suit in O.S. No.8603/2004 was filed by one Narayana Raju, the 6^th defendant herein who was also examined as D.W.1, and another suit was filed by one Sudarshan in O.S. No.8602/2004. Both the suits have been decreed by the City Civil Court where the plaintiff's vendors were the parties.

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Ex.D.123 is the judgment and decree passed in favour of the 6^th defendant in O.S. No.8603/2004 where the Civil Court

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decreed the suit of the 6^th defendant in respect of site No.18, Khatha No.404/380/18 of Hongasandra village and the sale deed executed by defendant Nos.1 to 4 dated 16.11.2004 is not binding on the plaintiff. But the said sale deed is 16.11.2004 and it is not pertaining to the sale deed of the plaintiff challenged in the suit where the sale deed of the plaintiff is Ex.P.7 which is dated 8.11.2004 and there is no reference in Ex.D.123 in respect of Sy. No.110.

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Another judgment relied on by the defendants is Ex.D.124-the judgment and decree in O.S. No.8602/2004 filed by one Sudarshan, (the 7^th defendant herein in this case). He has obtained decree in respect of land measuring 19.35 guntas out of 6 acres 38 guntas in Sy.No.110. The suit was filed against the erstwhile defendant Nos.1 to 4. He has claimed that the sale deed dated 16.11.2004 executed by the erstwhile owner is not binding and also sought for injunction. The suit of the 7^th defendant was decreed in part. Though the 7^th defendant was declared as owner of 19.35 guntas of land in Sy.No.110, but the declaration was sought by him to declare the sale deed dated 16.11.2004 as null and void and the said suit has been dismissed. The judgment in the said suit was not challenged by the 7^th defendant before the High Court by filing a first appeal, whereas there is no decree as against the

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plaintiff's sale deed dated 8.11.2004. Therefore, these judgments obtained by the 6^th and 7^th defendant in O.S. Nos.8603/2004 and 8602/2004 will not come to the aid of the defendants. However, in O.S. No.8896/2004 filed by defendant Nos.5 to 18, the defendants

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have produced only the orders passed in M.F.A. in respect of temporary injunction granted in their favour. It is also submitted that the said suit was decreed subsequently in 2013, which was not challenged. The plaintiffs have claimed the property in Sy.No.110. On perusal of the sale deeds produced by the respondentsdefendants before the trial Court, none of the sale deeds mention that the sites were formed in Sy.No.110 and only some house list khatha numbers were given.

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However, the claim of the plaintiff in the suit at paragraph 16 is that the property claimed by the defendants in O.S. No.8896/2004 is unidentified property. In at para No.45 of the written statement filed by defendant Nos.5, 8 to 16 and 18, they have categorically stated that the property of defendants Nos.5, 8 to 12 which comes within the limit of 1 acre 15 guntas is lying on the northern side of Sy.No.110 and hence, prayed for dismissing the suit.

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Learned counsel for the appellant has contended that

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the property of the plaintiff is situated on the southern side of Sy.No.110. It is also submitted that the entire land in Sy.No.110 is measuring 7 acres 12 guntas. Out of which, the plaintiffs have purchased only 5 acres 23 guntas and the remaining property was not claimed. As per the defendant's contention, their sites were purchased, which were lying on the northern side of the said survey number of the land. The very admission is made by the defendants in the written statement. But the 6^th defendant is examined as D.W.1 and in the examination in chief, he has given go by to paragraph 45 of the written statement made by him and it is stated that the portion of the properties were purchased by their family and others. He has only stated that the lands were now formed as sites. 14 different sale deeds were in favour of defendant Nos.5 to 18 and these documents and the sites were calculated by the plaintiff's counsel and he has argued that if all these sites were calculated, their measurement would be 1 acre 35 guntas, which is situated on the northern side of the property purchased by the plaintiff.

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It is the clear case of the plaintiff that the portion of the property in Sy.No. 110 is situated on the southern side which is nothing to do with the sites of defendant Nos.5 to 18. The

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defendant/respondent's counsel also contended that the GPA was executed by defendant Nos.1 to 4 in favour of Srinivasa Reddy and Raghavendra Swasmy, and in turn, they have already sold the sites to these defendants. Even if the GPA is cancelled, the sale deed executed by said Srinivasa Reddy and Raghavendra Swamy in favour of defendant Nos.5 to 18 was not questioned by the plaintiff in the suit except cancelling the GPA.

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That apart, the defendant Nos.7 to 18 were not given power of attorney in favour of defendant No.6 for leading any evidence on their behalf. He has also admitted in the cross examination. The said GPA also was not produced. Therefore, an adverse inference can be drawn against the other defendants for not entering into the witness box. However, D.W.1 in his cross examination has admitted that, at the time of registering the site, there is no conversion order. There is an apartment existed which is on the northern side of the road. The photographs and the documents produced are in the respect of the sites purchased by defendant Nos.5, 8 to 10 and 11.

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D.W.1 has further admitted in the cross examination

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that as per Exs.D.85 and D.86, there is a road in front of the apartment. He has stated that he does not know that on the

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northern side of the road, there is land measuring 5 acre 23 guntas and has stated that there is no dispute in the respect of property situated on the other side of the road. The 2^nd defendant examined as D.W.2 and he has admitted in the cross examination that defendants property are situated on the southern side of the road, but he has stated he do not know that the suit schedule property is situated on the northern side of the road. In this regard, the defendants/respondent advocates mainly relied upon the suit in O.S.No.8896/2004. In the said suit the judgment also delivered by the civil court where the defendant Nos.6 to 18 have filed the suit for declaration and injunction in respect of 'B' schedule property and subsequently during the pendency of the suit, the relief of declaration has been dismissed as withdrawn or deleted and they sought only for bare injunction. The suit was decreed on 11.4.2016 in the said judgment and it was stated that in the trial court defendant No.5 i.e., the plaintiff herein already filed comprehensive suit in O.S.No.2290/2005 (which is under challenge in this appeal) and the suit was decreed only for perpetual injunction as the defendant Nos.1 to 5 already filed the suit for declaration and injunction. Therefore, the issue of declaration and injunction has to be decided in this appeal. Therefore, even if it is considered the injunction obtained by the defendant Nos.5 to 18 in

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O.S.No.8896/2004 i.e., a portion of the Sy.No.110 which is situated

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on the southern side of the alleged road which is situated in front of the site belonging to the defendant No.6 who was examined as DW1, which clearly reveals these two properties are different portion of the same survey number of the land.

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Though learned senior counsel for the respondent has contended that the declaration without seeking relief of possession cannot be granted, but herein this case, the injunction sought by the plaintiff along with the relief of declaration is different portion of

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the property and not the portion of the property which is in possession of the defendant Nos.5 to 18. Therefore, the contention of the learned senior counsel for respondent is that section 34 of the Specific Relief Act without seeking possession, the relief of declaration cannot be granted is not acceptable.

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Learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in case of Anathula Sudhakar vs. P.Buchi Reddy (Dead) By L.Rs & Ors. reported in

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2008 AIR SCW 2692 and in case of Akkamma and Ors Vs Hemavathi reported in 2021 (10) SCC 1187 , where the plaintiff was able to show that he is in possession and that he is entitled for relief of injunction. The DW1 has admitted in

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the cross examination that the property of the defendant situated on the southern side of the road and this admission clearly goes to show that the properties are two portions of the same survey number. The said admission of the defendant No.6 clearly reveals the plaintiff schedule property is situated on the northern side.

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As regards to the other contention of the appellant counsel the other defendants have not entered into witness box, and not given any power to the defendant No.6 for leading evidence, the court can draw an adverse inference as per the judgment of Hon'ble Supreme Court in Vidhyadhar Vs Mankikrao & Another . However, when both the properties are different this judgment was not helpful to the appellant counsel.

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Learned counsel for the appellants also filed Interlocutory Application under order 41 Rule 27 of CPC along with the documents especially the conversion order passed by the Deputy Commissioner on 10.01.2013, where the Deputy Commissioner granted conversion order in favour of the plaintiff for 4 acres 33 guntas in Sy.No.110. The 2^nd document dated 05.06.2012 issued by the Tahsildar to the Deputy Commissioner for recommending the conversion order where it is stated, out of 5 acres 23 guntas of land 4 acre 33 guntas has been recommended

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by the Tahasildar for conversion. Accordingly, the conversion order was issued by the Deputy Commissioner of 10.1.2013. If at all the sites were formed, in 4 acres 33 guntas of land in question, the question of recommending for conversion of land by the Tahsildar does not arises. The documents no.3 reveals, there is a sketch prepared by the Sy.No.110, where it is stated that 5 acres 23 guntas of land claimed by the plaintiff but they are in possession of 4 acres 33 guntas. Therefore, the permission has been granted for conversion. The plaintiff also paid necessary tax to the BBMP as per document No.4. The khatha certificate also issued in the name of plaintiff on 7.1.2014. The khatha extract also issued on 7.1.2014, in respect of 4 acres 33 guntas. The taxes were paid by the plaintiff. These documents were not produced by the plaintiff in the suit which was lead to the dismissal of the suit by the trial court. On careful perusal of these documents which clearly reveals though plaintiff has purchased 5 acres 23 guntas of land, but due to the formation of the site by the previous owners through the GPA owners some building has come up and sites were formed and the defendant No.5 to 18 have purchased the sites and obtained the injunction order, which clearly demonstrate and support the contention of the plaintiffs counsel that the plaintiff's property in possession is only 4 acres 33 guntas in Sy.No.110 as per the

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additional documents. These documents were public documents admissible in evidence. If these documents were produced before the trial court, the result could have been otherwise and trial court could have decreed the suit of the plaintiff.

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The plaintiffs though obtained the conversion order and knowing fully that conversion order was issued only for 4 acres 33 guntas, but the remaining portion of the land they could have sought relief of seeking possession but she has not sought in the suit as rightly contended by the learned senior counsel for the respondent that without seeking possession, the declaratory relief cannot be granted as per section 34 of the Specific Relief Act.

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However, on perusal of the entire documents on record,

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though the plaintiff claimed 5 acres 23 guntas of land, but as per the additional documents and conversion order the plaintiff is in possession of only 4 acres 33 guntas and remaining 30 guntas of land they have lost the possession to the defendant and in view of the decree obtained by the defendants. Therefore, other than 1 acre 35 guntas as stated by the plaintiff in Sy.No.110 but the plaintiff is able to establish only 4 acres 33 guntas. Therefore, the plaintiff is entitled for declaration in respect of 5 acres 23 guntas

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but for injunction in respect of 4 acres 33 guntas and not for 5 acres

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23 guntas.

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The trial court though considered the documents of both side and evidences, but in view of the non filing of the additional documents produced in this court, along with the Interlocutory Application under order 41 rule 27 of CPC, the trial court could have decreed the suit. Therefore, the judgment of the trial court in respect of dismissing the suit is not sustainable in view of the production of additional documents or adducing additional evidence by the plaintiff in this appeal.

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Therefore, the judgment of the trial court calls for interference and is liable to be set aside. The suit of the plaintiff is required to be decreed in part. Accordingly, I proceed to pass the following:

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ORDER

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I.A filed under order 41 rule 27 of CPC by the appellant is hereby allowed and the additional documents are taken on record.

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Consequently, the appeal is allowed in part.

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The judgment of the trial court in

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O.S.No.2290/2005 dated 09.11.2015 by VIII Additional City Civil & Sessions Judge, Bengaluru, is hereby set aside.

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The suit of the plaintiff is decreed in part.

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The plaintiffs are hereby declared that they are the owners of the suit schedule property measuring 4 acres 33 guntas in Sy.No. 110.

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However, the relief for declaration is rejected for 30 guntas of land and perpetual injunction is granted as against the respondents Nos.5 to 13 in respect of 4 acres and 33 guntas. Since, the plaintiff not sought any relief for recovery of possession, regarding 30 guntas of land which is in possession of the defendant/respondents Nos.5 to 18.

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Defendants and their henchmen claiming through their defendants are hereby permanently restrained from interfering with the peaceful possession and enjoyment of the portion of the schedule property measuring 4

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acres 33 guntas as stated in the conversion order of the

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Deputy Commissioner.

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No order as to the cost.

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Draw decree accordingly.

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Sd/(K.NATARAJAN) JUDGE

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